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Fair Use

As a Los Angeles Superior Court prepares to break new ground concerning defamation on Instagram, journalists look towards the popular smart phone app as an alternative platform from which they can reach new audiences.

When using Pinterest (and Flickr and YouTube and Facebook
and on and on), what copyright, fair use, trademark and other issues
weigh on building communities and corporate use of fan pages and social media generally?
A hypothetical “Company” has plans for its Pinterest “community”, and
in particular, wonders about these situations:

Using Images of Identifiable People

Fair Use and Images

Trademarks: When is a “Fair Use” Argument Strongest?

Why Attribution and Linking to Original Sources is Important

3 introductory questions:

Question #1: Someone used to be a paid Company
sponsor or spokesperson. They are no longer. Can the Company continue
to post a photo of the old sponsor to Pinterest? Short Answer:
If the contract with the sponsor expressly permits it, yes.
Ordinarily, the contract would specify engagement for limited time, and
that would prohibit rights to use images beyond the contract period.
But it really depends on what the contract says.

Question #2: Can the Company post a photo of a fan of the Company? Short Answer:
Express consent is required, either through a release or the fan’s
agreement (whenever the photo is submitted) to terms of service.
Exceptions are discussed below.

Question #3: Can the Company post a photo of a Coca-Cola bottle on its Pinterest page? Short Answer: If the use of the image does not suggest (implicitly or explicitly) endorsement or association, then yes.

The issue of same-sex unions is hotly debated, and the discussion is heating up this election year with the case on California’s Proposition 8 making its way to the Supreme Court, and with President Obama recently declaring that he is in favor of same-sex marriage.

Here is a story that would be an excellent fact pattern for a media law exam. Copyright! DMCA! Libel! Oh my…. Well, at least I hope it will be a topic of interest for the readers of this blog.

Background

Consider the following fact pattern, drawn from a series of blog posts by the parties to this dispute. (Each party has since made an effort to delete their respective posts, so this analysis will not refer to the parties by name.)

If there is a polar opposite to organizations like ours, it is the intellectual property troll. And in the IP troll heirarchy, one of the trolliest has long been Righthaven, the self-described "pre-eminent copyright enforcer" that sued hundreds of bloggers and other Internet denizens apparently as part of its business model. If the DMLP, the EFF, Public Citizen, and the like are the Justice League, Righthaven would be in the Secret Society of Supervillians.

Looking to make their brand “a little more memorable,” the News Licensing Group is now NewsRight – and is billing itself as an “easy rights clearinghouse for the best news reporting and original journalism on the Web.”

Two legal developments in Nevada and Colorado last week make Righthaven (previous post here) a textbook example of how not to win a lawsuit. In their cases against the Democratic Underground (of which details can be found in the CMLP legal threats database) and Brian Hill (whose case filings are available on Scribd), Righthaven appears to be suing without owning the copyright and picking a fight with the judge handling dozens of still-pending cases, respectively.

We are looking for contributing authors with expertise in media law, intellectual property, First Amendment, and other related fields to join us as guest bloggers. If you are interested, please contact us for more details.

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